R v JL C-H - [2004] NSWCCA 474

CITATION: R v JL C-H [2004] NSWCCA 474

HEARING DATE(S): 8 December 2004

JUDGMENT DATE:
8 December 2004

JUDGMENT OF: Santow JA at 20; Hulme J at 1; Hidden J at 21

DECISION: Sentence of non-parole period of 4 years 6 months with a balance of sentence of 3 years 6 months yielding a total term of 8 years. The non-parole period should commence on 17 December 2002 and the Appellant will be eligible for parole on 17 June 2007. The Appellant should serve his sentence in a detention centre up to the stage when he reaches 21 years.

PARTIES :
Regina
JL C-H

FILE NUMBER(S): CCA 3242/03

COUNSEL: Crown: D Howard
Applicant: H Dhanji

SOLICITORS: Crown: S Kavanagh
Applicant: S O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/71/0003

LOWER COURT
JUDICIAL OFFICER : Bell DCJ

- 4 -

3242/03

SANTOW JA
HULME J
HIDDEN J

REGINA v J L C-H

Judgment

1 HULME J: By judgment delivered on 22 March 2004 leave to appeal was given to the appellant, the court’s decision being recorded as being as 2004 NSWCA 30.

2 The circumstances of the appellant’s offending and of him himself, are set out in some detail in that report and I do not propose to repeat what is there set forth, except to a very minimal extent.

3 The appellant’s offence was of aggravated sexual assault without consent, the aggravating factor being the infliction of actual bodily harm on the victim, and the court was asked to take into account two further charges of sexual intercourse without consent arising from the same incident.

4 I described the appellant’s offences at the time as appalling, a description which I see no reason to moderate.

5 The unusual step of granting leave at that stage and leaving the determination of the appeal until a later time arose because of some difficulties in relation to the evidence which the court should take into account in the event it determined to re-sentence the appellant.

6 The further evidence which the court is asked to take into account has been provided during the course of these proceedings, evidence which was not the subject of objection. That evidence shows that since the appellant has been incarcerated his rehabilitation within the prison system has moved a considerable distance. That is not to suggest it is complete. However, both daily reports kept within the Juvenile Justice system, and summary reports of various officers within that system have led me to the conclusion which I have expressed.

7 These matters do have to be considered against matters which were referred to in the court’s previous judgment setting out at a little length the appellant’s history and upbringing prior to the commission of the subject offences.

8 I described his offences as appalling. That also, in my view, is a fair description to give to his upbringing. I said:

“It is clear that if not dominated by violence in his home environment,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v JL C-H

Details

AGLC: R v JL C-H [2004] NSWCCA 474
Case: [2004] NSWCCA 474
Decision Date: 8 December 2004

CaseChat Overview and Summary

The case of Regina v JL C-H involved an appeal against a sentence imposed by the District Court of New South Wales. The appellant, JL C-H, was convicted of aggravated sexual assault without consent, with the offence being aggravated by the infliction of actual bodily harm on the victim. The appellant was also facing two additional charges of sexual intercourse without consent stemming from the same incident. The appeal was concerned with the severity of the sentence, specifically the non-parole period of seven years imposed by the sentencing judge.

The primary legal issue before the Court of Criminal Appeal was whether the sentence imposed by the District Court was appropriate in light of the appellant's youth, immaturity, and the mitigating factors of his upbringing and rehabilitation efforts. The Court had to balance the gravity of the offence against the appellant's background, including his immaturity at the time of the offence and his rehabilitation efforts while incarcerated. The Crown conceded that aspects of the appellant's youth and immaturity might have contributed to the offence, although they argued that the disregard for the victim's rights could not be fully excused by immaturity.

The Court found that the original sentence of ten years, including a non-parole period of seven years, was excessive when considering the appellant's youth and immaturity. The judges concluded that a sentence with a non-parole period of four years and six months, and a total term of eight years, was more appropriate. The non-parole period was set to commence on 17 December 2002, with the appellant becoming eligible for parole on 17 June 2007. Additionally, the Court ruled that the appellant should serve his sentence in a detention centre until he reaches the age of twenty-one years. The judges agreed on the revised sentence and the eligibility date for parole, despite a minor difference in opinion on the exact date.

Orders